02014R0208 — EN — 13.04.2022 — 014.001
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COUNCIL REGULATION (EU) No 208/2014 of 5 March 2014 (OJ L 066 6.3.2014, p. 1) |
Amended by:
Corrected by:
COUNCIL REGULATION (EU) No 208/2014
of 5 March 2014
concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine
Article 1
For the purposes of this Regulation, the following definitions apply:
‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after 6 March 2014, under or in connection with a contract or transaction, and includes in particular:
a claim for performance of any obligation arising under or in connection with a contract or transaction;
a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;
a claim for compensation in respect of a contract or transaction;
a counterclaim;
a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;
‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;
‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex II;
‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but may be used to obtain funds, goods or services;
‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;
‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;
‘funds’ means financial assets and benefits of every kind, including, but not limited to:
cash, cheques, claims on money, drafts, money orders and other payment instruments;
deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;
publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;
interest, dividends or other income on or value accruing from or generated by assets;
credit, right of set-off, guarantees, performance bonds or other financial commitments;
letters of credit, bills of lading, bills of sale; and
documents showing evidence of an interest in funds or financial resources;
‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace.
Article 2
Article 3
For the purposes of paragraph 1 persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:
for the misappropriation of Ukrainian public funds or assets or being an accomplice thereto; or
for abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.
Article 4
By way of derogation from Article 2, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:
necessary to satisfy the basic needs of the natural or legal persons, entities or bodies listed in Annex I, and dependent family members of such natural persons, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;
intended exclusively for payment of reasonable professional fees or reimbursement of incurred expenses associated with the provision of legal services;
intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources; or
necessary for extraordinary expenses, provided that the relevant competent authority has notified the grounds on which it considers that a specific authorisation should be granted to the competent authorities of the other Member States and to the Commission at least two weeks prior to authorisation.
Article 5
By way of derogation from Article 2, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, if the following conditions are met:
the funds or economic resources are subject to an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 2 was included in Annex I, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;
the funds or economic resources will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;
the decision is not for the benefit of a natural or legal person, entity or body listed in Annex I; and
recognition of the decision is not contrary to public policy in the Member State concerned.
Article 6
By way of derogation from Article 2 and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or under an obligation that arose for the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I, the competent authorities of the Member States may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that:
the funds or economic resources shall be used for a payment by a natural or legal person, entity or body listed in Annex I; and
the payment is not in breach of Article 2(2).
Article 7
Article 2(2) shall not apply to the addition to frozen accounts of:
interest or other earnings on those accounts;
payments due under contracts, agreements or obligations that were concluded or arose before the date on which the natural or legal person, entity or body referred to in Article 2 has been included in Annex I; or
payments due under judicial, administrative or arbitral decisions rendered in a Member State or enforceable in the Member State concerned,
provided that any such interest, other earnings and payments are frozen in accordance with Article 2(1).
Article 8
Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy, natural and legal persons, entities and bodies shall:
supply immediately any information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 2, to the competent authority of the Member State where they are resident or located, and shall transmit such information, directly or through the Member State, to the Commission; and
cooperate with the competent authority in any verification of such information.
Article 9
It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Article 2.
Article 10
Article 11
No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:
designated natural or legal persons, entities or bodies listed in Annex I;
any natural or legal person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in point (a).
Article 12
The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation in particular information:
in respect of funds frozen under Article 2 and authorisations granted under Articles 4, 5 and 6;
in respect of violation and enforcement problems and judgments handed down by national courts.
Article 13
The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.
Article 14
Article 15
Article 16
Article 17
This Regulation shall apply:
within the territory of the Union, including its airspace;
on board any aircraft or any vessel under the jurisdiction of a Member State;
to any person inside or outside the territory of the Union who is a national of a Member State;
to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;
to any legal person, entity or body in respect of any business done in whole or in part within the Union.
Article 18
This Regulation shall enter into force on the date of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
A.
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Name |
Identifying information |
Statement of reasons |
Date of listing |
|
1. |
Viktor Fedorovych Yanukovych (Вiктор Федорович Янукович), Viktor Fedorovich Yanukovich (Виктор Фёдорович Янукович) |
born on 9 July 1950 in Yenakiieve (Donetsk oblast), former President of Ukraine |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets. |
6.3.2014 |
|
2. |
Vitalii Yuriyovych Zakharchenko (Вiталiй Юрiйович Захарченко), Vitaliy Yurievich Zakharchenko (Виталий Юрьевич Захарченко) |
born on 20 January 1963 in Kostiantynivka (Donetsk oblast), former Minister of Internal Affairs. |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and in connection with the misuse of office by a public office-holder to procure an unjustified advantage for himself or a third party thereby causing a loss to the Ukrainian public budget or assets. |
6.3.2014 |
|
3. |
Viktor Pavlovych Pshonka (Вiктор Павлович Пшонка) |
born on 6 February 1954 in Serhiyivka (Donetsk oblast), former Prosecutor General of Ukraine |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets. |
6.3.2014 |
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▼M8 ————— |
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|
▼M9 ————— |
||||
|
6. |
Viktor Ivanovych Ratushniak (Вiктор Iванович Ратушняк) |
born on 16 October 1959, former Deputy Minister of Internal Affairs |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for being an accomplice thereto. |
6.3.2014 |
|
7. |
Oleksandr Viktorovych Yanukovych (Олександр Вiкторович Янукович) |
Born on 10 July 1973 in Yenakiieve (Donetsk oblast), son of former President, businessman |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for being an accomplice thereto. |
6.3.2014 |
|
▼M4 ————— |
||||
|
9. |
Artem Viktorovych Pshonka (Артем Вiкторович Пшонка) |
born on 19 March 1976 in Kramatorsk (Donetsk oblast), son of former Prosecutor General, Deputy Head of the faction of Party of Regions in the Verkhovna Rada of Ukraine |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for being an accomplice thereto. |
6.3.2014 |
|
▼M8 ————— |
||||
|
▼M11 ————— |
||||
|
12. |
Serhiy Vitalyovych Kurchenko (Сергiй Вiталiйович Курченко) |
Born on 21 September 1985 in Kharkiv, businessman |
Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets. |
6.3.2014 |
|
▼M12 ————— |
||||
|
▼M6 ————— |
||||
|
▼M12 ————— |
||||
|
▼M7 ————— |
||||
|
▼M13 ————— |
||||
|
▼M11 ————— |
||||
B. Rights of defence and the right to effective judicial protection
The rights of defence and the right to effective judicial protection under the Code of Criminal Procedure of Ukraine
Article 42 of the Code of Criminal Procedure of Ukraine (‘Code of Criminal Procedure’) provides that every person who is suspected or accused in criminal proceedings enjoys rights of defence and the right to effective judicial protection. These include: the right to be informed of the criminal offence of which he has been suspected or accused; the right to be informed, expressly and promptly, of his rights under the Code of Criminal Procedure; the right to have, when first requested, access to a defence lawyer; the right to present petitions for procedural actions; and the right to challenge decisions, actions and omissions by the investigator, the public prosecutor and the investigating judge.
Article 303 of the Code of Criminal Procedure distinguishes between decisions and omissions that can be challenged during the pre-trial proceedings (first paragraph) and decisions, acts and omissions that can be considered in court during preparatory proceedings (second paragraph). Article 306 of the Code of Criminal Procedure provides that complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local Court in the presence of the complainant or his defence lawyer or legal representative. Article 308 of the Code of Criminal Procedure provides that complaints regarding failure by the investigator or public prosecutor to respect reasonable time during the pre-trial investigation may be lodged with a superior public prosecutor and must be considered within three days of being lodged. In addition, Article 309 of the Code of Criminal Procedure specifies the decisions of investigating judges that may be challenged on appeal, and that other decisions may be subject to judicial review in the course of preparatory proceedings in Court. Moreover, a number of procedural investigating actions are only possible subject to a ruling by the investigating judge or a Court (e.g. seizure of property under Articles 167 – 175, and measures of detention under Articles 176 – 178, of the Code of Criminal Procedure).
Application of the rights of defence and the right to effective judicial protection of each of the listed persons
1. Viktor Fedorovych Yanukovych
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Yanukovych, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020 in criminal proceeding No 42016000000000785 in which the Court examined the petition of the National Anti-Corruption Bureau of Ukraine and granted permission to apprehend Mr Yanukovych. In the Court’s ruling, the investigating judge confirmed that there is a reasonable suspicion for Mr Yanukovych’s involvement in a criminal offence relating to misappropriation and confirmed Mr Yanukovych’s status as suspect in the criminal proceedings.
The Supreme Anti-Corruption Court also established that Mr Yanukovych has been staying outside Ukraine since 2014. The Court concluded that there were sufficient grounds to believe that Mr Yanukovych was hiding from the pre-trial investigation bodies.
Additionally, on 15 September 2021, the Supreme Anti-Corruption Court of Ukraine followed the motion of the National Anti-Corruption Bureau of Ukraine and granted permission for the detention of Mr Yanukovych. In that decision, the investigating judge confirmed the conclusions of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020.
In criminal proceeding No 42015000000002833, the Supreme Anti-Corruption Court of Ukraine in its ruling of 25 August 2021 granted permission to conduct a special pre-trial investigation in relation to Mr Yanukovych. In that ruling, the investigating judge confirmed the status of suspect of Mr Yanukovych and concluded that the evidence gives reasonable grounds for suspicion that Mr Yanukovych committed the criminal offences of which he is suspected. The judge also concluded that there are reasonable grounds to believe that Mr. Yanukovych is deliberately evading the investigation and the court in order to avoid criminal liability. Furthermore, in its ruling of 7 October 2021 the Supreme Anti-Corruption Court of Ukraine imposed detention in custody on Mr Yanukovych. In the ruling, the Court confirmed the status of suspect of Mr Yanukovych as well as the reasonable grounds for suspicion that Mr Yanukovych committed criminal offences. The judge also highlighted that there is a risk of Mr Yanukovych hiding from the investigation and the court to avoid criminal liability.
The Council has information that on 29 December 2021 the prosecutor considered that the evidence gathered during the pre-trial investigation was sufficient to draw up an indictment and Mr Yanukovych and his lawyers were notified about the completion of the pre-trial investigation. The defence was granted access to the materials of the pre-trial investigation for familiarisation, in line with the provisions of the Code of Criminal Procedure of Ukraine.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Yanukovych has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the Supreme Anti-Corruption Court attributed to Mr Yanukovych have significantly contributed to the length of the investigation.
2. Vitalii Yuriyovych Zakharchenko
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Zakharchenko, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 19 April 2021 ordering detention in custody of Mr Zakharchenko as well as the ruling of the Pecherskyi District Court of Kyiv dated 10 August 2021 granting permission to carry out a special pre-trial investigation in criminal proceeding No 42016000000002929. Those decisions of the investigating judges confirm the status of suspect of Mr Zakharchenko and highlight that the suspect is hiding from the investigation to avoid criminal liability.
Moreover, the Council has information that the Ukrainian authorities took measures to search for Mr Zakharchenko. On 12 February 2020, the investigating body decided to put Mr Zakharchenko on the international wanted list and forwarded the request to the Department of International Police Cooperation of the National Police of Ukraine for entry into the Interpol database. Additionally, on 11 May 2021, Ukraine sent a request for international legal assistance to the Russian Federation to establish the whereabouts of Mr Zakharchenko, which was rejected by Russia on 31 August 2021.
No violation of the rights of defence and the right to effective judicial protection can be ascertained in the circumstances where the defence is not exercising those rights.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Zakharchenko has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described above attributed to Mr Zakharchenko have significantly contributed to the length of the investigation.
3. Viktor Pavlovych Pshonka
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr V. Pshonka, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the Supreme Anti-Corruption Court of Ukraine of 2 October 2020, which dismissed the appeal submitted by Mr V. Pshonka’s lawyers to cancel the notice of suspicion dated 22 December 2014. The Court concluded that the notice of suspicion was served in accordance with the Code of Criminal Procedure of Ukraine and confirmed Mr V. Pshonka’s status as suspect in the criminal proceedings. Additionally, on 7 May 2020 and 9 November 2020, the Supreme Anti-Corruption Court of Ukraine rejected a request to open proceedings made on the basis of a complaint by lawyers regarding inaction by the National Anti-Corruption Bureau of Ukraine in the criminal proceedings. The Appellate Chamber of the Supreme Anti-Corruption Court confirmed those decisions on 1 June 2020 and 26 November 2020, respectively.
Furthermore, on 16 February 2021 the Supreme Anti-Corruption Court of Ukraine dismissed the appeal of the lawyers to cancel the resolution of the National Anti-Corruption Bureau of Ukraine on the suspension of the pre-trial investigation dated 14 January 2021. In that decision the Court confirmed the status of suspect of Mr V. Pshonka. Additionally, on 11 March 2021, the Supreme Anti-Corruption Court of Ukraine dismissed the complaint of Mr V. Pshonka’s lawyers concerning the inaction of the prosecutor.
The Council has information that the Ukrainian authorities took measures to search for Mr V. Pshonka. On 24 July 2020, a request for international legal assistance was sent to the competent authorities of the Russian Federation to establish the whereabouts of Mr V. Pshonka and to interrogate him. That request was rejected by Russia. Previously, the Russian authorities rejected requests for international legal assistance sent to them in 2016 and 2018.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr V. Pshonka has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the Supreme Anti-Corruption Court attributed to Mr V. Pshonka as well as the earlier non-execution of the requests for international legal assistance have significantly contributed to the length of the investigation.
6. Viktor Ivanovych Ratushniak
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Ratushniak, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 19 April 2021 ordering detention in custody on Mr Ratushniak as well as the ruling of the Pecherskyi District Court of Kyiv dated 10 August 2021 granting permission to carry out a special pre-trial investigation in criminal proceeding No 42016000000002929. Those decisions of the investigating judges confirm the status of suspect of Mr Ratushniak and highlight that the suspect is hiding from the investigation to avoid criminal liability.
The Council has information that the Ukrainian authorities took measures to search for Mr Ratushniak. On 12 February 2020, the investigating body decided to put Mr Ratushniak on the international wanted list and forwarded the request to the Department of International Police Cooperation of the National Police of Ukraine for entry into the Interpol database. Additionally, on 11 May 2021 Ukraine sent a request for international legal assistance to the Russian Federation to establish the whereabouts of Mr Ratushniak, which was rejected by Russia on 31 August 2021.
No violation of the rights of defence and the right to effective judicial protection can be ascertained in the circumstances where the defence is not exercising those rights.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Ratushniak has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described above attributed to Mr Ratushniak have significantly contributed to the length of the investigation.
7. Oleksandr Viktorovych Yanukovych
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr O. Yanukovych, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the Supreme Anti-Corruption Court of Ukraine. In criminal proceeding No 42015000000002833, the Supreme Anti-Corruption Court of Ukraine in its ruling of 25 August 2021 granted permission to conduct a special pre-trial investigation in relation to Mr O. Yanukovych. In that ruling, the investigating judge confirmed the status of suspect of Mr O. Yanukovych and concluded that the evidence gives reasonable grounds for suspicion that Mr O. Yanukovych committed the criminal offences of which he is suspected. The judge also concluded that there is reasonable ground to believe that Mr. O. Yanukovych is deliberately evading the investigation and the court in order to avoid criminal liability.
Furthermore, in its ruling of 13 October 2021 the Supreme Anti-Corruption Court of Ukraine imposed detention in custody on Mr O. Yanukovych. In the ruling the Court confirmed the status of suspect of Mr O. Yanukovych as well as the reasonable grounds for suspicion that Mr O. Yanukovych committed criminal offences. The judge also highlighted that there is a risk of hiding from investigation and the court to avoid criminal liability.
The Council has information that on 29 December 2021 the prosecutor considered the evidence gathered during the pre-trial investigation was sufficient to draw up an indictment and Mr O. Yanukovych and his lawyers were notified about the completion of the pre-trial investigation. The defence was granted access to the materials of the pre-trial investigation for familiarisation, in line with the provisions of the Code of Criminal Procedure of Ukraine.
The Council has information that the Ukrainian authorities took measures to search for Mr O. Yanukovych, who is staying in the Russian Federation and avoiding investigation.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr O. Yanukovych has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described above attributed to Mr O. Yanukovych have significantly contributed to the length of the investigation.
9. Artem Viktorovych Pshonka
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr A. Pshonka, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the Supreme Anti-Corruption Court of Ukraine of 8 July 2020, which dismissed the appeal submitted by Mr A. Pshonka’s lawyers to cancel the resolution of the prosecutor dated 30 April 2015 on the suspension of the pre-trial investigation. The Court also concluded that the notice of suspicion was served in accordance with the Code of Criminal Procedure of Ukraine and confirmed Mr A. Pshonka’s status as suspect in the criminal proceedings.
Furthermore, on 10 February 2021, the Supreme Anti-Corruption Court of Ukraine dismissed the appeal of the lawyers to cancel the resolution of the National Anti-Corruption Bureau of Ukraine on the suspension of the pre-trial investigation dated 14 January 2021. In that decision the Court confirmed the status of suspect of Mr A. Pshonka. Additionally, on 11 March 2021, the Supreme Anti-Corruption Court of Ukraine dismissed the complaint of Mr A. Pshonka’s lawyers concerning the inaction of the prosecutor.
The Council has information that the Ukrainian authorities took measures to search for Mr A. Pshonka. On 24 July 2020, a request for international legal assistance was sent to the competent authorities of the Russian Federation to establish the whereabouts of the suspect and to interrogate him. That request was rejected by Russia. Previously, the Russian authorities rejected the request for international legal assistance sent to them in 2018.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr A. Pshonka has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the Supreme Anti-Corruption Court attributed to Mr A. Pshonka as well as to an earlier non-execution of the request for international legal assistance have significantly contributed to the length of the investigation.
12. Serhiy Vitalyovych Kurchenko
The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Kurchenko, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the fact that the defence was notified about the completion of the pre-trial investigation in criminal proceeding No 42016000000003393 on 28 March 2019 and was provided access to the materials for familiarisation. The Council has information that the familiarisation by the defence is ongoing. On 11 October 2021, the National Anti-Corruption Bureau of Ukraine additionally informed the defence lawyers of Mr Kurchenko about the completion of the pre-trial investigation and the provision of access to the materials of the pre-trial investigation for familiarisation. The Council received information that the National Anti-Corruption Bureau of Ukraine filed a motion to establish a term for the review by the defence party in order to address the delay of the defence party in reviewing the materials of the pre-trial investigation.
In relation to criminal proceeding No 12014160020000076, in its decision of 18 September 2020, the Odessa Court of Appeal granted the appeal by the prosecutor and imposed a preventive measure of detention in custody on Mr Kurchenko. The Court also stated that Mr Kurchenko departed Ukraine in 2014 and that his location cannot be established. The Court concluded that Mr Kurchenko is hiding from the pre-trial investigation bodies in order to avoid criminal liability. On 20 December 2021, the Kyivskyi District Court of Odesa City granted permission to carry out a special pre-trial investigation in absentia. Furthermore, on 20 October 2021 the Kyivskyi District Court of Odesa City dismissed the appeal of the lawyers to cancel the resolution of the prosecutor on the suspension of the pre-trial investigation dated 27 July 2021.
The Council has information that the Ukrainian authorities took measures to search for Mr Kurchenko. On 13 May 2021, the Main Department of the National Police in Odessa Region forwarded the request to the Ukrainian Bureau of Interpol and Europol to publish a Red Notice concerning Mr Kurchenko, which is under consideration. The Council was informed that on 29 April 2020 the Ukrainian authorities sent a request for international legal assistance to the Russian Federation, which was returned on 28 July 2020 without execution.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Kurchenko has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the Odessa Court of Appeal attributed to Mr Kurchenko as well as the non-execution of the request for international legal assistance have significantly contributed to the length of the investigation.
ANNEX II
Websites for information on the competent authorities and address for notification to the European Commission
BELGIUM
https://diplomatie.belgium.be/en/policy/policy_areas/peace_and_security/sanctions
BULGARIA
https://www.mfa.bg/en/EU-sanctions
CZECHIA
www.financnianalytickyurad.cz/mezinarodni-sankce.html
DENMARK
http://um.dk/da/Udenrigspolitik/folkeretten/sanktioner/
GERMANY
https://www.bmwi.de/Redaktion/DE/Artikel/Aussenwirtschaft/embargos-aussenwirtschaftsrecht.html
ESTONIA
https://vm.ee/et/rahvusvahelised-sanktsioonid
IRELAND
https://www.dfa.ie/our-role-policies/ireland-in-the-eu/eu-restrictive-measures/
GREECE
http://www.mfa.gr/en/foreign-policy/global-issues/international-sanctions.html
SPAIN
https://www.exteriores.gob.es/es/PoliticaExterior/Paginas/SancionesInternacionales.aspx
FRANCE
http://www.diplomatie.gouv.fr/fr/autorites-sanctions/
CROATIA
https://mvep.gov.hr/vanjska-politika/medjunarodne-mjere-ogranicavanja/22955
ITALY
https://www.esteri.it/it/politica-estera-e-cooperazione-allo-sviluppo/politica_europea/misure_deroghe/
CYPRUS
https://mfa.gov.cy/themes/
LATVIA
http://www.mfa.gov.lv/en/security/4539
LITHUANIA
http://www.urm.lt/sanctions
LUXEMBOURG
https://maee.gouvernement.lu/fr/directions-du-ministere/affaires-europeennes/organisations-economiques-int/mesures-restrictives.html
HUNGARY
https://kormany.hu/kulgazdasagi-es-kulugyminiszterium/ensz-eu-szankcios-tajekoztato
MALTA
https://foreignandeu.gov.mt/en/Government/SMB/Pages/SMB-Home.aspx
NETHERLANDS
https://www.rijksoverheid.nl/onderwerpen/internationale-sancties
AUSTRIA
https://www.bmeia.gv.at/themen/aussenpolitik/europa/eu-sanktionen-nationale-behoerden/
POLAND
https://www.gov.pl/web/dyplomacja/sankcje-miedzynarodowe
https://www.gov.pl/web/diplomacy/international-sanctions
PORTUGAL
https://www.portaldiplomatico.mne.gov.pt/politica-externa/medidas-restritivas
ROMANIA
http://www.mae.ro/node/1548
SLOVENIA
http://www.mzz.gov.si/si/omejevalni_ukrepi
SLOVAKIA
https://www.mzv.sk/europske_zalezitosti/europske_politiky-sankcie_eu
FINLAND
https://um.fi/pakotteet
SWEDEN
https://www.regeringen.se/sanktioner
Address for notifications to the European Commission:
European Commission
Directorate-General for Financial Stability, Financial Services and Capital Markets Union (DG FISMA)
Rue de Spa 2
B-1049 Brussels, Belgium
E-mail: relex-sanctions@ec.europa.eu